required entry of remedial order for violation of § 8(a)(5); Board had withheld remedy on de minimis principle
How later courts described this case
- required entry of remedial order for violation of § 8(a)(5); Board had withheld remedy on de minimis principle
Written by the judges who cited it.
The opinion
TAMM, Circuit Judge
(dissenting).
I would affirm the Board’s action in this case. The Board considered the entire record, the employer’s long record for bargaining with the employees, as well as the practices prevalent as to working hours of maintenance employees over a period of years. The employment contract was, as the majority opinion points out, silent on the work week of maintenance employees and related only to the production workers. Discussions in 1956 and 1957 relating to the assignment of week-end work failed to result in any agreement, and it was not included, as I have indicated, in any employment contract.
The employer, having recently acquired new. and more complex mobile equipment was, in fact, confronted with a new and difficult problem of providing adequate maintenance for this equipment in order that it would be available and usable for production employees. In order to solve this problem, and motivated — as the Board found — only by a desire to cope with its legitimate business need to solve the maintenance problem, the employer assigned a single employee for week-end work. The hours of employment of maintenance employees had been varied, changed, and modified *632 from time to time over a period of years. It is my view that, giving full weight to these elements, the Board was justified in declining to order remedial action. I do not believe that the Board is required by statute to take remedial steps or otherwise in cases in which, while it finds a nominal violation of section 8(a) (5), it concludes on the whole record that such action is not necessary. I believe there is an inherent discretion in the Board in this type of situation to decide whether remedial action is necessary. “In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience.” National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 346 , 73 S.Ct. 287, 289 , 97 L.Ed. 377 (1952). In fact, the Board’s order will not be disturbed by the courts “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 540 , 63 S.Ct. 1214, 1218 , 87 L.Ed. 1568 (1942). The Supreme Court, speaking in the Seven-Up Bottling case, supra, 344 U.S. at 352 , 73 S.Ct. at 291 , in defining the responsibility of the Board under section 10(c), specifically stated that the Board must “mould remedies suited to practical needs.”
I am also concerned in this case about the probability of the case being completely mooted by the passage of time. The contract in effect at the time here involved expired on June 1, 1966. Neither counsel for petitioner nor counsel for the Board was able to advise the court whether this dispute had been resolved by the execution of a new contract between the employer and employees. I believe the court should have some indication that there is a presently existing controversy before passing upon the issue in the case.